Blackmun, J. -- Opinion of the Court
B. The pregnant woman cannot be isolated in her privacy. She carries an
embryo and, later, a fetus, if one accepts the medical definitions of the
developing young in the human uterus. See Dorland's Illustrated Medical
Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is
inherently different from marital intimacy, or bedroom possession of
obscene material, or marriage, or procreation, or education, with which
Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer
were respectively concerned. As we have intimated above, it is reasonable
and appropriate for a State to decide that at some point in time another
interest, that of health of the mother or that of potential human life,
becomes significantly involved. The woman's privacy is no longer sole and
any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at
conception and is present throughout pregnancy, and that, therefore, the
State has a compelling interest in protecting that life from and after
conception. We need not resolve the difficult question of when life begins.
When those trained in the respective disciplines of medicine, philosophy,
and theology are unable to arrive at any consensus, the judiciary, at this
point in the development of man's knowledge, is not in a position to
speculate as to the answer. [*160]
It should be sufiicient to note briefly the wide divergence of thinking on
this most sensitive and difficult question. There has always been strong
support for the view that life does not begin until live birth. This was
the belief of the Stoics.(56) It appears to be the predominant, though not
the unanimous, attitude of the Jewish faith.(57) It may be taken to
represent also the position of a large segment of the Protestant community,
insofar as that can be ascertained; organized groups that have taken a
formal position on the abortion issue have generally regarded abortion as a
matter for the conscience of the individual and her family.(58) As we have
noted, the common law found greater significance in quickening. Physicians
and their scientific colleagues have regarded that event with less interest
and have tended to focus either upon conception, upon live birth, or upon
the interim point at which the fetus becomes "viable," that is, potentially
able to live outside the mother's womb, albeit with artificial aid.(59)
Viability is usually placed at about seven months (28 weeks) but may occur
earlier, even at 24 weeks.(60) The Aristotelian theory of "mediate
animation," that held sway throughout the Middle Ages and the Renaissance
in Europe, continued to be official Roman Catholic dogma until the l9th
century, despite opposition to this "ensoulment" theory from those in the
Church who would recognize the existence of life from [*161] the moment of
conception.(61) The latter is now, of course, the official belief of the
Catholic Church. As one brief amicus discloses, this is a view strongly
held by many non-Catholics as well, and by many physicians. Substantial
problems for precise definition of this view are posed, however, by new
embryological data that purport to indicate that conception is a "process"
over time, rather than an event, and by new medical techniques such as
menstrual extraction, the "morning- after" pill, implantation of embryos,
artificial insemination, and even artificial wombs.(62)
In areas other than criminal abortion, the law has been reluctant to
endorse any theory that life, as we recognize it, begins before live birth
or to accord legal rights to the unborn except in narrowly defined
situations and except when the rights are contingent upon live birth. For
example, the traditional rule of tort law denied recovery for prenatal
injuries even though the child was born alive.(63) That rule has been
changed in almost every jurisdiction. In most States, recovery is said to
be permitted only if the fetus was viable, or at least quick, when the
injuries were sustained, though few courts [*162] have squarely so
held.(64) In a recent development, generally opposed by the commentators,
some States permit the parents of a stillborn child to maintain an action
for wrongful death because of prenatal injuries.(65) Such an action,
however, would appear to be one to vindicate the parents' interest and is
thus consistent with the view that the fetus, at most, represents only the
potentiality of life. Similarly, unborn children have been recognized as
acquiring rights or interests by way of inheritance or other devolution of
property, and have been represented by guardians ad litem.(66) Perfection
of the interests involved, again, has generally been contingent upon live
birth. In short, the unborn have never been recognized in the law as
persons in the whole sense.
In view of all this, we do not agree that, by adopting one theory of life,
Texas may override the rights of the pregnant woman that are at stake. We
repeat, however, that the State does have an important and legitimate
interest in preserving and protecting the health of the pregnant woman,
whether she be a resident of the State or a nonresident who seeks medical
consultation and treatment there, and that it has still another important
and legitimate interest in protecting the potentiality of human life. These
interests are separate and distinct. Each grows in substantiality as the
woman approaches [*163] term and, at a point during pregnancy, each becomes
With respect to the State's important and legitimate interest in the health
of the mother, the "compelling" point, in the light of present medical
knowledge, is at approximately the end of the first trimester. This is so
because of the now-established medical fact, referred to above at 149, that
until the end of the first trimester mortality in abortion may be less than
mortality in normal childbirth. It follows that, from and after this point,
a State may regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation and protection of
maternal health. Examples of permissible state regulation in this area are
requirements as to the qualifications of the person who is to perform the
abortion; as to the licensure of that person; as to the facility in which
the procedure is to be performed, that is, whether it must be a hospital or
may be a clinic or some other place of less-than-hospital status; as to the
licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to
this "compelling" point, the attending physician, in consultation with his
patient, is free to determine, without regulation by the State, that, in
his medical judgment, the patient's pregnancy should be terminated. If that
decision is reached, the judgment may be effectuated by an abortion free of
interference by the State.
With respect to the State's important and legitimate interest in potential
life, the "compelling" point is at viability. This is so because the fetus
then presumably has the capability of meaningful life outside the mother's
womb. State regulation protective of fetal life after viability thus has
both logical and biological justifications. If the State is interested in
protecting fetal life after viability, it may go so far as to proscribe
abortion [*164] during that period, except when it is necessary to preserve
the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in
restricting legal abortions to those "procured or attempted by medical
advice for the purpose of saving the life of the mother," sweeps too
broadly. The statute makes no distinction between abortions performed early
in pregnancy and those performed later, and it limits to a single reason,
"saving" the mother's life, the legal justification for the procedure. The
statute, therefore, cannot survive the constitutional attack made upon it
This conclusion makes it unnecessary for us to consider the additional
challenge to the Texas statute asserted on grounds of vagueness. See United
States v. Vuitch, 402 U. S., at 67-72.
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that
excepts from criminality only a lifesaving procedure on behalf of the
mother, without regard to pregnancy stage and without recognition of the
other interests involved, is violative of the Due Process Clause of the
(a) For the stage prior to approximately the end of the first trimester,
the abortion decision and its effectuation must be left to the medical
judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first
trimester, the State, in promoting its interest in the health of the
mother, may, if it chooses, regulate the abortion procedure in ways that
are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its
interest in the potentiality of human life [*165] may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of
2. The State may define the term "physician," as it has been employed in
the preceding paragraphs of this Part XI of this opinion, to mean only a
physician currently licensed by the State, and may proscribe any abortion
by a person who is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of
the modern abortion statutes are considered. That opinion and this one, of
course, are to be read together.(67)
This holding, we feel, is consistent with the relative weights of the
respective interests involved, with the lessons and examples of medical and
legal history, with the lenity of the common law, and with the demands of
the profound problems of the present day. The decision leaves the State
free to place increasing restrictions on abortion as the period of
pregnancy lengthens, so long as those restrictions are tailored to the
recognized state interests. The decision vindicates the right of the
physician to administer medical treatment according to his professional
judgment up to the points where important [*166] state interests provide
compelling justifications for intervention. Up to those points, the
abortion decision in all its aspects is inherently, and primarily, a
medical decision, and basic responsibility for it must rest with the
physician. If an individual practitioner abuses the privilege of exercising
proper medical judgment, the usual remedies, judicial and
intra-professional, are available.
Our conclusion that Art. 1196 is unconstitutional means, of course, that
the Texas abortion statutes, as a unit, must fall. The exception of Art.
1196 cannot be struck down separately, for then the State would be left
with a statute proscribing all abortion procedures no matter how medically
urgent the case.
Although the District Court granted appellant Roe declaratory relief, it
stopped short of issuing an injunction against enforcement of the Texas
statutes. The Court has recognized that different considerations enter into
a federal court's decision as to declaratory relief, on the one hand, and
injunctive relief, on the other. Zwickler v. Koota, 389 U. S. 241, 252-255
(1967); Dombrowski v. Pfister, 380 U. S. 479 (1965). We are not dealing
with a statute that, on its face, appears to abridge free expression, an
area of particular concern under Dombrowski and refined in Younger v.
Harris, 401 U. S., at 50.
We find it unnecessary to decide whether the District Court erred in
withholding injunctive relief, for we assume the Texas prosecutorial
authorities will give full credence to this decision that the present
criminal abortion statutes of that State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed,
and Dr. Hallford's complaint in intervention is dismissed. In all other
respects, the judgment [*167] of the District Court is affirmed. Costs are
allowed to the appellee.
It is so ordered.
[Previous section of opinion]
[Case overview (Syllabus)]
56 Edelstein 16. [Return to text]
57 Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For
a stricter view, see I. Jakobovits, Jewish views on Abortion, in Abortion
and the Law 124 (D. Smith ed. 1967). [Return to text]
58 Amicus Brief for the American Ethical Union et al. For the position of
the National Council of Churches and of other denominations, see Lader
99-101. [Return to text]
59 L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971);
Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965). [Return to
60 Hellman & Pritchard, supra, n. 59, at 493. [Return to text]
61 For discussions of the development of the Roman Catholic position, see
D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
[Return to text]
62 See Brodie, The New Biology and the Prenatal Child, 9 J. Family L. 391,
397 (1970); Gorney, The New Biology and the Future of Man, 15 U. C. L. A.
L. Rev. 273 (1968); Note, Criminal Law-- Abortion--The "Morning-After Pill"
and Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L.
Rev. 211 (1967); G. Taylor, The Biological Time Bomb 32 (1968); A.
Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube
Darkly: Artificial Insemination and the Law, 67 Mich. L. Rev. 127 (1968);
Note, Artificial Insemination and the Law, 1968 U. 111. L. F. 203. [Return
63 W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper & F.
James, The Law of Torts 1028-1031 (1956); Note, 63 Harv. L. Rev. 173
(1949). [Return to text]
64 See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action
for Death of Unborn Child, 15 A. L. R. 3d 992 (1967). [Return to text]
65 Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: The
Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).
[Return to text]
66 Louisell, Abortion, The Practice of Medicine and the Due Process of Law,
16 U. C. L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L. Rev. 994,
999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law.
349, 351-354 (1971). [Return to text]
67 Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we
discuss the father's rights, if any exist in the constitutional context, in
the abortion decision. No paternal right has been asserted in either of the
cases, and the Texas and the Georgia statutes on their face take no
cognizance of the father. We are aware that some statutes recognize the
father under certain circumstances. North Carolina, for example, N. C. Gen.
Stat. § 14-45.1 (Supp. 1971), requires written permission for the
abortion from the husband when the woman is a married minor, that is, when
she is less than 18 years of age, 41 N. C. A. G. 489 (1971); if the woman
is an unmarried minor, written permission from the parents is required. We
need not now decide whether provisions of this kind are constitutional.
[Return to text]